Sarnia judge describes trial as one of the most unusual sexual assault cases he has ever heard

A sexual assault trial where a woman testified deception prompted her to unknowingly have sex with her boyfriend's boss ended with the case being dismissed.

The conclusion followed a one-day trial, following lawyers' submissions and testimony heard Jan. 31. The judgment was made this week.

The woman testified she was awoken by a man in her darkened bedroom during an early morning in June 2012.

She had been expecting her boyfriend. She engaged in a variety of sexual activity including mutual oral sex, testifying she was in a drowsy state due to having taken two sleeping pills.

The boyfriend called the woman’s phone after listening outside the bedroom door with her teenaged daughter.

The woman testified that light from her cellphone when it was ringing allowed her to see it was not her boyfriend who was in her bed. That’s when she realized it was her boyfriend's boss. The two men had been at a bar earlier in the evening.

At that point the woman testified she was totally in shock and subsequently came to believe her boyfriend had contributed to the deception.

The boyfriend, who is no longer with the woman or the employer, testified there were physical differences between the two men.

The boyfriend testified he is taller, heavier and covered with tattoos. He is not circumcised, unlike his former boss, and testified he had a goatee while the other man was clean-shaven.

Under cross-examination defence lawyer James Guggisberg had suggested to the woman it was preposterous that she did not realize the man was not her boyfriend and that her testimony was a lie.

The woman had said she was not lying and had detected nothing to indicate it was not her boyfriend.

In his submissions, Guggisberg said the woman's testimony was not credible.

The man had closed the door and only told the woman "it's me" before sexual activity began, indicating he intended to deceive the woman, said assistant Crown attorney Nila Mulpuru.

While it is plausible the woman did not realize it was not her boyfriend, Justice Mark Hornblower said the evidence left him with doubt, requiring dismissal of the charge.

Hornblower described it as one of the most unusual sexual assault cases he had heard, said Hornblower.